Being arrested or held (detained) by the police: Their powers and your rights
When the police can make an arrest
When can the police arrest someone?
Crimes Act 1961, s 315 Bail Act 2000, s 37
The police can arrest you if:
- they find you committing an offence punishable by a prison term (or they’ve got good reason to suspect this), or
- they find you “disturbing the peace” (or they’ve got good reason to suspect this), or
- it’s a situation where they’ve got a specific legal power to arrest you (see below for examples), or
- they have a warrant for your arrest issued by a court – these can be issued for a range of reasons, including if you’ve breached a bail condition, or if you didn’t turn up at court when you were supposed to.
Note: Most arrests happen without a warrant. Some statutes that create particular offences may restrict police powers to arrest without a warrant for those offences. A failure by the police to consider their discretion to arrest is unlawful and arbitrary.
Specific powers to arrest or hold you
These are some of the powers the police have under specific Acts to arrest a person without a warrant:
Summary Offences Act 1981, ss 39(1), 39(2)
- Minor offences in the Summary Offences Act – A police officer can arrest you if they’ve got good reason to suspect you’ve committed an offence against the Summary Offences Act. This Act deals with a range of less serious crimes like common assault, tagging, disorderly behaviour, and drinking in public (some of these are covered in the chapter “Common crimes”).
Family Violence Act 2018, s 113
- Breaching a family violence Protection Order – The police can arrest a person they have good cause to suspect has breached a Protection Order (see: “Breaches of Protection Orders: When the other person doesn’t obey the order”).
- Drunk in a public place or when trespassing – If the police find you drunk in a public place, or drunk while trespassing on private property, they can take you into police custody. They have to release you once you’ve sobered up, and can’t hold you for more than 12 hours.
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 109
- Mental illness – The police can take you into custody if you’re in a public place and they’ve got reasonable grounds to believe you have a mental disorder. They can take you to a police station, hospital, or other appropriate place, and arrange for a doctor to examine you as soon as practical (see: “Mental health”).
